Definitive Report - Report No 392, October 2020

Case No 3344 (Brazil) - Complaint date: 03-DEC-18 - Closed

Allegations: restrictions of freedom of association and collective bargaining in the public sector and presidential veto of a Bill governing collective bargaining in the public sector, even though the Bill was the result of discussions with the social partners

1. 288. The complaint is contained in the communication dated 3 December 2018 from Public Services International (PSI), the Single Confederation of Workers (CUT), the New Trade Union Confederation of Workers (NCST), the General Union of Workers (UGT), the Confederation of Brazilian Trade Unions (CSB), the Confederation of Workers of Brazil (CTB), Força Sindical (FS), the People’s Trade Union Confederation (CONLUTAS), Intersindical, the Confederation of Public Servants of Brazil (CSPB), the Confederation of Federal Public Service Workers (CONDSEF), the Confederation of Municipal Public Service Workers (CONFETAM/CUT), the National Confederation of CUT Social Security Workers (CNTSS/CUT), the National Federation of State Judiciary Workers (FENAJUD), the Trade Union Federation of Brazilian University Workers (FASUBRA), the National Federation of Urban Service Workers (FNU), and the Trade Union of Employees in Science, Technology, Production and Innovation in Public Health (ASFOC-SN).
2. 289. The Government sent its observations in a communication dated 5 August 2019.
3. 290. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 291. In their communication dated 3 December 2018, the complainants report non-compliance with the obligations arising from Convention No. 151, in particular with regard to the lack of legislation to promote and regulate collective bargaining in the public sector, as well as legislation establishing adequate protections against anti-union discrimination. Specifically, the complainants allege that the President of the Republic unduly vetoed the Bill (No. 3831/201) on collective bargaining in the public sector that had been drawn up in consultation with the social partners.
2. 292. The complainants state that: (i) although it has ratified Convention No. 151, the State is not fully implementing it, arguing that this would require a law governing collective bargaining for public servants; (ii) collective bargaining in the public sector faces many obstacles, such as the need for authorization from a higher authority and the limitations of the Fiscal Responsibility Act; (iii) as a result, the authorities tend to impose working conditions unilaterally; (iv) without recourse to collective bargaining, the trade unions use strikes to put pressure on the authorities, which run on indefinitely (the complainants note that in the first half of 2018, 520 of the 893 strikes that took place were in the public sector, and they also regret that the Federal Supreme Court decided that the administration should discount strike days from salaries – even though the Constitutional Court had maintained the possibility for the parties to negotiate compensation for the days of stoppage); (v) there are very few existing examples of collective bargaining and, although this supports the argument that the promotion of collective bargaining does not rely on legislative developments, their existence and effectiveness vary depending on who is in Government; (vi) the establishment of the Permanent National Negotiating Table in 2003 is illustrative of this – the complainants regret that, in addition to its structural and bureaucratic limitations, it is emptied out every time the country experiences a political change, its results are limited and irregular, and the agreements are not always complied with, which triggers more strikes; and (vii) more recently, there has been a tendency to restrict freedom of association in the public sector, as demonstrated by the limitation of collective bargaining that culminated in the veto of the Bill (No. 3831/2015) intended to regulate the exercise of collective bargaining in that sector.
3. 293. In that regard, the complainants note that: (i) seven years after the ratification of Convention No. 151, the National Congress finally passed a Bill regulating collective bargaining in the public sector (Bill No. 3831/2015), which was transmitted for the approval of the President of the Republic on 27 November 2017; (ii) since 2015, when the Bill was presented to the Senate, several public audiences have been held, with broad participation from trade union confederations, federations, trade unions and associations of public sector workers; (iii) considering the high level of legislative and social coordination around the text, it was expected to be approved in its entirety, nonetheless, on 18 December 2017, the President of the Republic vetoed it entirely, and the veto was upheld by the Chamber of Deputies on 3 April 2018, which meant that the Bill was definitively shelved; and (iv) the sophistry contained in the presidential veto lacks any legal basis (although the veto argued that there was a lack of legislative jurisdiction, it is not true to say that the Bill, which covered general procedural standards, encroached upon the jurisdiction of the states; neither did the Bill concern matters reserved for the legislative initiative of the President of the Republic, as the veto also argued).

B. The Government’s reply

1. 294. In a communication dated 5 August 2019, the Government sent its reply to the allegations made by the complainants. The Government states that: (a) although the Federal Constitution guarantees freedom of association for public servants, the trade union rights of those public servants still lack specific legislation, in particular with regard to collective bargaining in the public sector; (b) on the other hand, in spite of not having specific legislation, negotiations do take place in the sector and there are various examples of this – the creation of the Permanent National Negotiating Table, the main goal of which was to be a permanent negotiating system within the federal system; the Permanent Negotiating System for Efficiency in the Provision of Municipal Public Services in São Paulo (SINP); and the Permanent National Negotiating Table for the Single Health System (MNNP-SUS), as a forum of equals and of negotiating procedures to deal with conflicts and requests emanating from the Single Health System; (c) every legislative proposal must respect all the procedures set out in the legal system and, with regard to Bill No. 3831/2015, on the understanding that the necessary formal procedures had not been followed, the President of the Republic at the time considered it appropriate to veto the Bill; (d) nonetheless, Brazil continues to believe that the regulations of Convention No. 151 are of great importance to the country and, therefore, the Federal Senate is considering a new proposal on the matter – a new Bill (Bill No. 719/2019), the main scope of which is the establishment of general standards for collective bargaining in public service; and (e) it is worth highlighting that the new Ministry of the Economy has created a specific department to propose policies, standards and procedures relating to labour relations in the federal public service, since its jurisdiction includes the need to promote the administration’s participation in dialogue with bodies representing the interests of public servants and to propose measures to resolve conflicts that arise in matters of labour relations during the negotiation of working conditions. In conclusion, the Government affirms the country’s interest in establishing standard-setting mechanisms in order to better implement Convention No. 151 in its internal legal system and notes that, while it is seeking to harmonize its regulatory framework, negotiations will be undertaken by other means, such as the aforementioned tables.

C. The Committee’s conclusions

1. 295. The Committee notes that the complaint concerns the development of legislative measures to give effect to the provisions of Convention No. 151, in particular with regard to collective bargaining and protection against anti-union discrimination in the public sector.
2. 296. The Committee notes that, although the complainants report a lack of adequate legislation and allege that the President of the Republic unduly vetoed a Bill (No. 3831/201) on collective bargaining in the public sector that had been drawn up in consultation with the social partners; on the other hand, the Government notes that the regulations of Convention No. 151 are of great importance to the country and a new Bill is being considered by the Senate (Bill No. 719/2019) with a view to establishing general standards for collective bargaining in public service.
3. 297. In these circumstances and emphasizing the importance of social dialogue, the Committee encourages the authorities concerned to continue consulting with the social partners, in the hope that the legislation in question will be adopted very soon. Since Brazil has ratified Conventions Nos. 151 and 154, the Committee refers the legislative aspects of the case to the Committee of Experts on the Application of Conventions and Recommendations.

The Committee’s recommendations

1. 298. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee encourages the authorities concerned to continue consulting with the social partners, in the hope that the legislation in question will be adopted very soon.
   • (b) The Committee refers the legislative aspects of the case to the Committee of Experts on the Application of Conventions and Recommendations.